Full opinion text
TABLE OF CONTENTS — MEMORANDUM OF SEPTEMBER 6, 1990 BACKGROUND . 525 A. Procedural History . 525 B. The IBM 3090 Computer System. 526 C. AMI’s Reconfiguration and Split Activity on 3090 Systems. 529 II. DISCUSSION. 530 A. IBM’s Third Counterclaim — Infringement of IBM’s 3090 Microcode Copyright . 530 i. Copyrightability of the 3090 Microcode. 531 ii. 17 U.S.C. § 107 . 533 iii. 17 U.S.C. § 117. 535 iv. 17 U.S.C. § 109 . 537 v. Consent Decree. 538 a. AMI’s Copying in Support of Reconfigurations. 540 b. AMI’s Copying to Perform Splits. 541 vi. Copyright Estoppel Based on IBM’s Conduct Relating to 308X Microcode . 547 vii. Self Help. 548 viii. Unclean Hands. 548 ix. Other Defenses Asserted by AMI. 549 IBM’s Fourth Counterclaim — Breach of Contract for a 3090 400E/200E Split RPQ. 550 IBM’s Fifth and Sixth Counterclaims — Lanham Act and Unfair Competition for 3090 Microcode Labels and Screen Notices . 552 IBM’s First Counterclaim — Breach of Contract for 308X Net Priced Upgrades . 554 E. AMI’s Count V — Tortious Interference with Contracts and Prospective Contractual Relations Concerning Memory Cards and Splits . 555 F. AMI’s Count VI — Breach of Contract to Provide 3090 Microcode License 558 G. AMI’s Count VII — Breach of Obligations to AMI as a Third Party Beneficiary of the Document of Understanding between IBM and the Ad Hoc Committee. 558 III. RELIEF. 559 MEMORANDUM O’NEILL, District Judge. Allen-Myland, Inc. (“AMI”) brought this action challenging various business practices of International Business Machines Corporation (“IBM”) under the Sherman Act and state common law. After the issuance in 1988 of my decision following trial of AMI’s Section 1 Sherman Act claim, AMI filed additional claims and IBM filed additional counterclaims. During the spring of this year, I tried all but one of the remaining claims and counterclaims in this action, including: a counterclaim that AMI infringed IBM’s copyright in a computer program, the 3090 microcode; two counterclaims that AMI violated the Lanham Act and engaged in unfair competition by label-ling the copies of the 3090 microcode it made as produced by IBM; two counterclaims that AMI breached contracts with IBM; a claim that IBM tortiously interfered with AMI’s contracts and prospective contractual relations in its business practices regarding memory cards and splits of IBM computers; a claim that IBM breached a contract to provide AMI a 3090 microcode license; and a claim that IBM breached a contract of which AMI is a third party beneficiary. Jurisdiction over these claims is based on 28 U.S.C. §§ 1332, 1338(a) and (b) and pendent jurisdiction. The parties tried these claims before me without a jury. I bifurcated trial, and the record as to liability has been closed. This memorandum constitutes' my findings of fact and conclusions of' law. See Fed.R.Civ.P. Rule 52(a). I. BACKGROUND A. Procedural History This action commenced on October 25, 1985, when AMI filed its original complaint against IBM alleging violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, unfair competition, and tortious interference with business and prospective business relationships. IBM’s original counterclaims were filed on December 30, 1986; they asserted claims of copyright infringement, breach of contract and tor-tious interference with a contract. The parties agreed to try the liability issues relating to AMI’s Section 1 Sherman Act claim separately. I issued an opinion resolving this claim in favor of IBM on July 21, 1988. AMI v. IBM, 693 F.Supp. 262 (E.D.Pa.1988). On August 10, 1988, AMI moved for leave to supplement its complaint with three additional counts, including one claim that IBM had violated provisions of the Consent Decree entered by the United States District Court for the Southern District of New York on January 25, 1956 in United States v. IBM, No. 72-344 (the “Consent Decree”). I placed the present action in suspense on October 6, 1988 pending resolution of AMI’s anticipated declaratory judgment action before that Court seeking a declaration concerning the Consent Decree's applicability to IBM’s counterclaims in the present action. Without opining on that subject, the New York District Court dismissed AMI’s declaratory judgment action on June 20, 1989, 714 F.Supp. 707. See infra, at 540, n. 28. I removed the present action from the suspense docket on June 30, 1989. IBM moved to bar use of the Consent Decree by AMI in the present action on July 14, 1989. I denied IBM’s motion without prejudice to its renewal after trial of the remaining claims and counterclaims. IBM filed amended and supplemental counterclaims on October 11, 1989, asserting claims against AMI of: breach of contract and tortious interference relating to 308X net priced upgrades; copyright infringement in the unauthorized copying and distribution of 3090 microcode; breach of contract for failure to pay for a split RPQ ordered and received from IBM; and violation of the Lanham Act and unfair competition in distributing 3090 microcode with unauthorized replicas of IBM labels. AMI again moved to supplement its complaint with 11 new counts. On December 4,1989,1 permitted AMI to file three of the proposed counts asserting claims of: tor-tious interference with contracts and prospective contractual relations; breach of contract to provide a 3090 microcode license; and breach of a contract of which AMI is a third party beneficiary. B. The IBM 3090 Computer System IBM manufactures and sells, among other products, large scale high performance computer systems. At present, IBM’s highest performance computer system product line is the 3090 line, introduced in 1985. Granito, Tr. at 10. Within the 3090 line, there are 42 different models available, and over 29,000 different model, memory and feature configurations possible. Granito, Tr. at 29-30; DX 4236-A. Since 1985, IBM has introduced the E, S and J families of 3090 computer systems, each offering improvements in technology, function and performance over the previously introduced families. Granito, Tr. at 10-11; DX 4232-A. An individual 3090 computer system consists of a 3090 central processing unit, one or two 3097 power and cooling distribution units, a 3092 processor controller, two 3370 disk drives attached to the 3092, consoles for the use of the operator or service personnel, and input/output devices attached to the 3090. Granito, Tr. at 6-7; DX 4187. Some models of the 3090 system are multiprocessors, containing duplicates of every element, including processors, power supplies and power controls, so that one half of the machine can be taken away or powered down and the other half can continue operating. Granito, Tr. at 34. The 3092 performs a variety of functions for the 3090 system, including machine startup, monitoring machine performance, error recovery, performing self-diagnostics and supporting the servicing and reconfiguration of the system. Hogan, Tr. at 114-140. In all but the smallest models of the 3090 family, the 3092 contains two duplicate processors and associated memory and related circuitry. Granito, Tr. at 7; Hogan, Tr. at 132-133. Each of the 3370s contains a complete copy of the computer software referred to by the parties as the “3090 microcode”. Granito, Tr. at 7, 46. Thus, each of the processors within the 3092 has a complete copy of the 3090 microcode available on a 3370 from which to run and perform the various processor controller functions. Granito, Tr. at 7, 36-39. The 3090 microcode contains a modified version of IBM’s VM operating system and various application programs that perform the processor controller functions. Hogan, Tr. at 141-144; Granito, Tr. at 45-46; Bel-gard, Tr. at 1365; Belgard, Dep. Tr. at 30; Allen, Dep. Tr. at 955-956. Information about the configuration of the 3090 system also is contained in the 3090 microcode. Belgard, Tr. at 1365. When a 3090 system operates in “single image mode”, one side of the 3092 performs the processor controller functions for the system using the 3090 microcode stored on one of the 3370s. The other side of the 3092, using the 3090 microcode stored on the other 3370, serves as a backup to the active side of the 3092, and also performs self-diagnostic programs. Grani-to, Tr. at 74; Hogan, Tr. at 120, 1554-1555; DX 5643. A 3090 system which is a multiprocessor also can operate in “partitioned mode”, under which each half of the 3090 system is logically separate and runs its own operating system. Each of the 3092s and each of the copies of 3090 microcode stored on the 3370s is in active use simultaneously in this mode of operation. Granito, Tr. at 74-76; Hogan, Tr. at 120. The redundancy of the 3092 and twin 3370s allows the 3090 system to continue operating even if one 3370 or the active side of the 3092 should fail and require repairs. Granito, Tr. at 35-37. IBM has calculated that this redundancy dramatically reduces the projected failure rate of the 3090 system: while a 3090 system configured with a 3092 having only a single processing side and one 3370 would fail once a year on average, a 3090 system configured with a two-sided 3092 and twin 3370s is projected to fail only once every 182.5 years. Granito, Tr. at 38; DX 4238. IBM supplies for each 3090 system an archival copy of the 3090 microcode on five magnetic tapes, tape cassettes or optical disks. This copy of the 3090 microcode is accessible to IBM or third party customer service engineers to replace the microcode on the 3370s if it is damaged or destroyed, or if IBM releases a new version of the microcode. Granito, Tr. at 7-9; Bieschke Dep., Tr. at 60-61; DX4178; DX 4179; DX 4180. In mid-1987, IBM issued a set of instructions known as the Carrier EC, direefing its customer engineers to make certain that: only the latest version of the 3090 microcode was kept with an individual 3090 system for archival purposes; all archival tapes, cassettes and disks were labeled “Property of IBM”; and all archival copies were kept by the customer engineers in a secure location or area under IBM control. Conti, Tr. at 204-205; Bigan-do, Tr. at 1614-1615; DX 5610. In July 1988, IBM modified the Purchase Agreement under which 3090 systems are sold to classify the 3090 microcode as part of a category called “Licensed Internal Code.” PX 1263; Conti, Tr. at 225-226. The modified Purchase Agreement grants a license for limited use of Licensed Internal Code, including the 3090 microcode, to “the owner or the rightful possessor” of a 3090 system. Both before and after this modification of the Purchase Agreement, IBM has used the feature codes “9201”, “9202” or “9203” in the Purchase Agreement to designate the media on which the 3090 microcode is provided, respectively tape, cassette or optical disk. Where one of these feature codes is used, the purchase price listed is “N/C”, for “no charge.” Allen, Tr. at 1321; DX 4519; DX 4675; PX 1242. IBM published the original version of the 3090 microcode on August 23, 1985, and registered it with the United States Copyright Office on November 12, 1986 for use on all then existing models of the 3090 line. DX 4002. IBM subsequently published and registered at least 10 later versions of the 3090 microcode: Engineering Change levels 620, 630, 630B, 660B, 665, 670, 675, 675D, 765 and 852. DX 4004; DX 4005; DX 4006; DX 4007; DX 4008; DX 4009; DX 4011; DX 4012; DX 4013; DX 4014. Since the introduction of the 3090 system IBM has placed a copyright notice on all distributed tapes, cassettes or disks containing the 3090 microcode. PX 1333, at ¶ 13. A copyright notice also appears on the screen of the operator’s console when a 3090 system is first powered up. Greene, Tr. at 891-892; PX 1400. An individual 3090 computer system can be reconfigured into another model 3090 system in the same family, or a 3090 system in another family. Granito, Tr. at 27-31; DX 4236-A. Some 3090 systems also can be split into two lower performance 3090 systems. PX 1333, at ¶ 5. In order to reconfigure or split a 3090 system, it is necessary not only to change system hardware, for example by adding or removing processors, memory and input/output devices, but also to change the 3090 microcode, since the 3092 cannot function properly unless it is using 3090 microcode tailored for the system’s exact configuration. Granito, Tr. at 48-49. It is possible physically to split a 3090 system into two smaller 3090 systems that will function independently without making additional copies of the 3090 microcode. Allen, Tr. at 1041-1043, 1279-1280; PX 1400. To split a 3090 system into two smaller 3090 systems configured with full redundancy in the 3092 and 3370s, however, requires two copies of 3090 microcode in addition to those on the 3370s attached to the original 3090 system. Granito, Tr. at 62-64. IBM will certify for IBM maintenance only 3090 systems configured with full redundancy in the 3092 and 3370s. IBM’s Post-Trial Memorandum of Law, at 8, n. 8 (continued from p. 7); Allen, Tr. at 1280. For a customer who wants to reconfigure a 3090 system as a different model or family 3090 system, IBM will supply the replacement 3090 microcode necessary to complete the reconfiguration without any hardware parts that may be required through a Request for Price Quotation, or RPQ. Bigando, Tr. at 1597-1598; Conti, Tr. at 201-203; DX 4523. IBM charges $420 for each 3090 microcode tape required for the reconfiguration. Reconfigurations of 3090 systems require replacement of between one and five 3090 microcode tapes, depending upon the type of reconfiguration. Conti, Tr. at 202-203. Between December 1, 1988 and December 31, 1989, IBM received 485 orders for 3090 microcode tapes to support reconfigurations. On average, these tapes were requested to be shipped within 2.7 business days, and actually were shipped by IBM within 3.4 business days. During the same period, AMI placed 43 orders for 3090 microcode tapes, seeking, on average, shipment within 1.9 business days. IBM shipped AMI’s completed orders, on average, within 2.0 business days. The IBM personnel who fill 3090 microcode RPQ orders do not know or investigate to determine whether a particular order has been placed by IBM Credit Corporation or by another 3090 system owner. Bigando, Tr. 1609-1612; DX 5644; DX 5645. IBM also will supply through a split Request for Price Quotation, or split RPQ, the replacement 3090 microcode required by a customer who wants to split a 3090 system into two smaller 3090 systems. IBM charges a fee for the split RPQ designed to account for the difference in price between the original 3090 system and the two resulting smaller 3090 systems, and therefore to neutralize the risk of “arbitrage” resulting from this difference. Dellasega, Tr. at 584-585. For example, IBM sells a Model 400E 3090 system for $8,375,000, and a Model 200E 3090 system for $4,500,-000. Conti, Tr. at 194-195; DX 4385. Additional hardware required to make two complete Model 200Es from one Model 400E costs $279,000. As a result, absent an additional charge for 3090 microcode or for labor, two Model 200Es produced from a split Model 400E cost $346,000 less than two Model 200Es purchased from IBM. To close this risk of “arbitrage”, IBM charges $333,000 for the additional 3090 microcode required to accomplish this split, or $350,-000 for the 3090 microcode plus labor. Conti, Tr. at 194-195; Phillips, Tr. at 1442-1443; DX 5620. C. AMI’s Reconfiguration and Split Activity on 3090 Systems Since 1973, AMI has been engaged in the business of providing engineering services to owners of IBM large scale mainframe computers. Allen, Tr. at 990-991. AMI has performed splits and reconfigurations on the mainframe computer lines which IBM sold prior to the 3090, including the 360, 370, 3033 and 308X lines. Allen, Tr. at 990-994; PX 1240. AMI has performed numerous reconfigurations and four splits of 3090 computer systems. Allen, Tr. at 1001-1005. To support these activities, AMI has compiled and maintained a library of 3090 microcode tapes, comprised of: original 3090 microcode tapes; copies of 3090 microcode tapes 1, 3, 4 and 5 (of the five tapes, cassettes or disks on which IBM supplies the archival copy of the 3090 microcode); and copies of 3090 microcode tape 2, some of which were unaltered, and some of which have been modified by AMI. PX 1333, at ¶ 34. As of the time of trial, according to AMI president Allen, AMI’s library contained 96 copies of 3090 microcode tapes 1, 3 or 4, and 400 copies of 3090 microcode tape 2. Allen, Tr. at 1171, 1179-1184. Allen admitted at trial that he did not believe that the copies made for AMI’s library or in the course of completing reconfigurations or splits were authorized by IBM. Allen, Tr. at 1344. To stock its library, AMI has copied 3090 microcode obtained from numerous sources, including 3090 microcode tape 2s AMI ordered from IBM, 3090 microcode supplied with systems sent to AMI for reconfiguration, or upon which AMI performed work at its customer’s location, and 3090 microcode tapes sent to AMI by Com-disco, a computer leasing company which has used AMI’s engineering services for its 3090 systems. Guadagno, Tr. at 360; Allen, Tr. at 1305-1306; Allen Dep., Tr. at 131-134, 169; Zartler Dep., Tr. at 184, 187; DX 4525. AMI has copied and used 3090 microcode for reconfigurations in three different ways since it began compiling its library in March 1987. Allen, Tr. at 1211; DX 4555. In some instances, AMI modified a 3090 microcode tape which came with the 3090 system sent to AMI for reconfiguration, sent the modified tape out with the reconfigured machine, and stored copies of the original and modified tapes in its library. Allen, Tr. at 1066. In other cases, AMI searched in its library for a 3090 microcode tape copied from a system closely matching the configuration which AMI hoped to produce, made any necessary modifications, and produced a new copy of the tape for use on the reconfigured machine, changing the serial number on the 3090 microcode from that of the machine from which it had been copied to the serial number of the reconfigured machine. Allen, Tr. at 1066, 1211; PX 1333, at ¶ 36. Finally, in 30 to 40 instances AMI created “rainbow” 3090 microcode tapes by combining portions of tapes in its library copied from several different 3090 systems, changing the serial number to that of the reconfigured machine on which the rainbow tape was to be installed, and sometimes making other modifications. Allen, Tr. at 1067, 1070, 1211. When using its library to provide 3090 microcode for a reconfiguration, AMI typically made at least five copies of a portion or of an entire copy of the 3090 microcode: the original IBM 3090 microcode tape was copied into the library; AMI modified the original tape and copied the modified 3090 microcode to its library; the modified 3090 microcode was copied onto tape to load the microcode on the reconfigured 3090 and to serve as a backup; and the modified 3090 microcode was copied onto each of the two 3370s for the reconfigured machine. Gua-dagno, Tr. at 286-287; Allen, Tr. at 1016-1017; Allen Dep., Tr. at 148-151, 157-159, 165. AMI has performed four splits of 3090 Model 400E systems into two Model 200E systems using 3090 microcode tapes from its library. Allen, Tr. at 1005. For all four splits, AMI created and supplied rainbow tapes of 3090 microcode from the tapes it had copied into its library from many different 3090 systems, including one 3090 system owned by IBM Credit Corporation. Guadagno, Tr. at 329-342; DX 4582; DX 4583; DX 4584; DX 4585. To provide 3090 microcode for each 200E produced by these splits, AMI engaged in at least ten separate acts of copying a portion of or making a complete copy of 3090 microcode. Gua-dagno, Tr. at 333-334. In one split, of 3090 Model 400E serial number 70409, AMI also used 3090 microcode provided by IBM in response to a split RPQ ordered by AMI. Guadagno, Tr. at 340-341; DX 4584. AMI has not paid IBM for this split RPQ. Allen, Tr. at 1357. On the copies of the 3090 microcode that AMI created and sent to its customers with reconfigured or split 3090 systems, AMI affixed labels virtually identical to those attached by IBM to the archival 3090 microcode tapes, cassettes or disks. Guadag-no, Tr. at 278-279; DX 4701. The labels contain, among other information, the IBM copyright notice, notice that the tape is IBM property and that unauthorized use is prohibited, and the serial number of the 3090 system with which AMI shipped the 3090 microcode. DX 4701. Allen testified that AMI “intentionally attempted to duplicate that label as IBM would have produced it.” Allen, Dep. (Custodian of Records) Tr. at 83. II. DISCUSSION A. IBM’s Third Counterclaim — Infringement of IBM’s 3090 Microcode Copyright IBM’s Third Counterclaim alleges that the 3090 microcode is copyrightable and has been copyrighted by IBM, and that AMI has infringed IBM’s copyright by its unauthorized copying and distribution of the 3090 microcode. Under 17 U.S.C. § 106, the copyright owner has exclusive rights, among other things, to reproduce and distribute copies of the copyrighted work and to prepare derivative works based upon the copyrighted work. To establish its claim of copyright infringement, IBM must show .two things: that it owned a valid copyright on the 3090 microcode; and that AMI copied the 3090 microcode. Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222, 1231 (3d Cir.1986), cert. denied 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987). AMI does not dispute that IBM properly registered the 3090 microcode in accordance with 17 U.S.C. § 410(a), or that IBM provided notice of its copyright in compliance with 17 U.S.C. § 401. AMI’s Memorandum in Opposition to IBM’s Post-Trial Memorandum of Law, at 17; PX 1333, at II13. IBM’s certificates of registration for the 3090 microcode constitute prima facie evidence of the copyright’s validity under 17 U.S.C. § 410(c). See supra, at 527. The evidence established that AMI has engaged in extensive copying of the 3090 microcode, both to stock its library and to supply the 3090 microcode to reconfigured or split 3090 systems. See supra, at 529-530. AMI advances as defenses to IBM’s copyright infringement counterclaim that: the 3090 microcode is not copyrightable; AMI’s copying is permissible under 17 U.S.C. §§ 107, 117 and 109; IBM is es-topped from asserting this counterclaim by its violations of the Consent Decree; IBM is estopped by its previous conduct regarding AMI’s copying of 308X microcode; AMI’s copying was justified self-help; IBM is guilty of unclean hands and copyright misuse; AMI’s copying impliedly was licensed by IBM; IBM breached an agreement to provide AMI a license to copy 3090 microcode; IBM’s claim is barred by the statute of limitations, laches and waiver; and the 3090 microcode is in the public domain. I will discuss each of these defenses in turn. i. Copyrightability of the 3090 Microcode AMI contends that tape 2 of the 3090 microcode contains material which cannot be copyrighted under 17 U.S.C. § 102, and that the 3090 microcode as a whole cannot be copyrighted because of the relationship between the 3090 microcode and the operation of the 3090 system. 17 U.S.C. § 101 defines a “computer program” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” As the Court of Appeals for the Third Circuit stated in Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3rd Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984), “a computer program, whether in object code or source code, is a ‘literary work’ and is protected from unauthorized copying” under 17 U.S.C. § 102(a) if it is an original work of authorship fixed in a tangible medium of expression. AMI concedes that “there is valid copyrightable material within the microcode.” AMI’s Memorandum in Opposition to IBM’s Post-Trial Memorandum, at 17. AMI nevertheless contends that tape 2 of the five 3090 microcode tapes supplied by IBM for archival purposes is not copyrightable because it consists largely of a parts list lacking sufficient originality to be copyrightable under Toro Co. v. R & R Products Co., 787 F.2d 1208 (8th Cir.1986). AMI also argues that tape 2 is in digital code not intelligible to or usable by humans, and therefore is not copyrightable under 17 U.S.C. § 102(b). Both of these arguments incorrectly analyze the contents of tape 2 in isolation from the rest of the 3090 microcode. As the Court of Appeals for the Fourth Circuit has stated, “in reviewing a derivative work for originality, it is not sufficient to consider the matter by looking at the component parts: the work must be reviewed as a whole, not just reviewed or analyzed part by part.” M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d 421, 439 (4th Cir.1986). The contents of tape 2 are instructions, software tools and data used in conjunction with or by the remainder of the 3090 microcode stored by IBM on tapes 1, 3, 4 and 5. Galler, Tr. at 1666-1667, 1669-1670; DX 5636. The 3090 microcode and the 3090 system cannot function properly without the tables, instructions and data stored on tape 2. Hogan, Tr. at 148; Belgard, Tr. at 1396-1397. At the same time, the 3090 system still could function properly if the 3090 microcode were compressed to fit on three or four tapes, and the contents of tape 2 stored on a tape with information currently stored on tapes 1, 3, 4 or 5. Granito, Tr. at 9-10; Hogan, Tr. at 142. IBM uses five tapes, rather than three or four, for the 3090 microcode for manufacturing convenience and to simplify system upgrades. Hogan, Tr. at 142. Moreover, when the 3090 microcode loads into the memory of the 3092 for execution, its arrangement bears no relationship to its segregation for archival purposes in tapes 1 through 5, so that the contents of tape 2 are scattered and intermingled with the rest of the 3090 microcode during the 3090 system’s operation. Hogan, Tr. at 144-145; Galler, Tr. at 1673-1674. In short, the significance which AMI attaches to the storage of certain portions of the 3090 microcode on tape 2 alone is misplaced, since IBM has stored on tape 2 a substantial, necessary portion of a single work, the 3090 microcode. AMI also argues that by designing the 3090 system so that it cannot be modified without changing the 3090 microcode IBM improperly has attempted to use its copyright in the 3090 microcode to control the ability of 3090 system owners to use, modify and alter their machines. AMI argues that under 17 U.S.C. § 102(b) and Baker v. Selden, 101 U.S. 99, 25 L.Ed. 841 (1879), copyright protection should not be extended to the 3090 microcode because such protection would extend beyond expression to the utilitarian or idea. The idea/expression distinction, as set forth by the Supreme Court in Baker and Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), prohibits monopolization of an idea through copyright protection where there is only one or a limited number of ways to express the idea. This distinction is recognized in § 102(b) which, according to its legislative history, was intended “to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 57, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5670. The Court of Appeals for the Third Circuit discussed the idea/expression distinction in Apple Computer: [the inquiry should] focus on whether the idea is capable of various modes of expression. If other programs can be written or created which perform the same function as an Apple’s operating system program, then that program is an expression of the idea and hence copyrightable. In essence, this inquiry is no different than that made to determine whether the expression and idea have merged, which has been stated to occur where there are no or few other ways of expressing a particular idea. 714 F.2d at 1253. The evidence establishes that to perform the various processor controller functions and to enable the 3090 system to run IBM could have written the 3090 microcode in a number of ways other than the particular mode of expression it ultimately selected. Hogan, Tr. at 164; Belgard, Tr. at 1383, 1405-1410, 1420. For example, IBM: did not have to write the 3090 microcode as a table-driven program; could have chosen to put different portions of the 3090 microcode in the form of a table; could have used an operating system other than VM in the 3090 microcode; or could have written the 3090 microcode in a programming language other than PL/S. Hogan, Tr. at 110-112, 147, 161-162; Galler, Tr. at 1671; Allen, Tr. at 1175-1176. AMI argues that recognizing IBM’s copyright on the 3090 microcode would extend protection to the idea underlying the 3090 microcode because AMI cannot reconfigure or split a 3090 system without an exact copy of the 3090 microcode for the particular configuration of the 3090 system AMI seeks to produce. AMI presented no evidence, however, to contradict the evidence presented by IBM that a computer program differing from the actual 3090 microcode in any or all of the ways noted above nevertheless could enable the 3090 system to operate. Whether it would be economically feasible for AMI to write its own program to perform the 3092 processor controller functions without copying any of IBM’s 3090 microcode is not relevant to the idea/expression distinction. Otherwise, a computer program so complex that vast expenditures of time and money would be required to develop a different program expressing the same idea would not be protected, even if innumerable different programs expressing that idea could be written, while a simpler program requiring less significant expenditures of time and money might be protected. So long as other expressions of the idea are possible, a particular expression of the idea can enjoy copyright protection, regardless of whether a copying party possesses the resources to write a different expression of the idea. In addition, AMI suggests that this Court should analogize AMI’s copying and modification of the 3090 microcode to permissible “repair” of patented machines, as recognized in Wilbur-Ellis Co. v. Kuther, 377 U.S. 422, 84 S.Ct. 1561, 12 L.Ed.2d 419 (1964) and Everpure, Inc. v. Cuno, Inc., 875 F.2d 300 (Fed.Cir.), cert. denied, — U.S. -, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989). AMI’s Memorandum in Opposition to IBM’s Post-Trial Memorandum of Law, at 17-27. The patent law doctrine of permissible repair “allows one lawfully using a patented combination to preserve and maintain the combination by making repairs or replacing unpatented component parts necessary for continued use.” Everpure, 875 F.2d at 302-03. Assuming that this doctrine could be applied to copyright law in some instances, I conclude that it cannot be applied to the alleged copyright infringement in the present case because the component part of the 3090 system that AMI has repaired or replaced is the copyrighted 3090 microcode. Courts have applied the doctrine of permissible repair only to repair or replacement of unpatented parts of a patented combination, not to repair or replacement of a patented component. See, e.g., Wilbur-Ellis, 377 U.S. at 423, 84 S.Ct. at 1562 (“We also put to one side the ease where replacement was made of a patented component of a combination patent. We deal here with a patent that covered only a combination of unpatented components.”); Everpure, 875 F.2d at 302-304 (holding that replacement of unpatented filter cartridge was not infringement of patent on filter unit of which cartridge was a component). ii. 17 U.S.C. § 107 AMI contends that its copying of the 3090 microcode constituted fair use under § 107, and therefore did not infringe IBM’s copyright. Because “the fair use exception to the Copyright Act is an affirmative defense to a suit for copyright infringement, the party asserting the exception bears the burden of production and persuasion to show that the exception (and the defense) is applicable.” Association of American Medical Colleges v. Mikaelian, 571 F.Supp. 144, 151 (E.D.Pa.1983), aff'd, 734 F.2d 3 (3d Cir.1984). Upon consideration of the four factors enumerated in § 107, I conclude that AMI has not established that its copying of the 3090 microcode constitutes fair use. AMI’s copying, both in accumulating its library of the 3090 microcode and in creating the 3090 microcode copies to be used on reconfigured or split 3090 systems, is purely for commercial purposes. As the Supreme Court has observed, “every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984). Implying that this copying was for educational purposes, AMI argues that copying to build a library of different versions of the 3090 microcode was necessary in order to learn how to use the 3090 system and to discover how to support various configurations of the 3090 system. AMI’s Memorandum in Opposition to IBM’s Post-Trial Memorandum of Law, at 39-40. Since AMI built its library and sought to educate itself in order to achieve its commercial purposes without paying IBM, however, such copying was for commercial purposes and not for nonprofit educational purposes. See Harper & Row v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985) (“[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”) The inquiry into the nature of the copyrighted work concerns whether the work is more informational than creative. See Harper & Row, 471 U.S. at 563, 105 S.Ct. at 2232 (“[t]he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.”) Thus, courts consider “whether the work is imaginative and original, or whether it represented a substantia] investment of time and labor made in anticipation of a financial return.” Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1154 (9th Cir.1986). As noted above, the 3090 microcode is the product of the substantial creative effort IBM made in anticipation of financial return when it sold 3090 systems. See supra, at 533, n. 10. Regardless of whether some portions of the 3090 microcode, such as tables listing the configuration of the 3090 system, might be primarily informational in nature, the 3090 microcode as a whole is a creative work. In many instances, AMI has made a complete copy of the 3090 microcode, or has assembled and distributed a complete rainbow copy of the 3090 microcode from copies in its library. While such wholesale copying does not per se preclude a finding of fair use, it does “militate[] against a finding of fair use.” Hustler, 796 F.2d at 1155. In other cases, AMI has copied only tape 2 of the five archival 3090 microcode tapes. As discussed above, the portion of the 3090 microcode stored on tape 2 is essential to the program’s operation, and constitutes one-fifth of the entire 3090 microcode. See supra, at 531-532. When only a portion of a copyrighted work is copied, but the copied portion is a key or essential part of the copyrighted work, such copying is nevertheless substantial enough to militate against a finding of fair use. See Harper & Row, 471 U.S. at 564-565, 105 S.Ct. at 2232-33 (finding that verbatim copying of 300 to 400 words of a copyrighted book was copying of a substantial portion of the book, and therefore “evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else’s copyrighted expression.”) Because AMI’s copying of the 3090 microcode was for commercial purposes, the likelihood of future harm to the potential market for or to the value of the 3090 microcode may be presumed. Sony, 464 U.S. at 451, 104 S.Ct. at 793. Moreover, IBM presented evidence that it had lost revenues for each of the four splits of 3090 systems that AMI performed by making copies of the 3090 microcode. See supra, at 528-529, 529-530. If AMI continues to make copies of the 3090 microcode to perform splits of 3090 systems, such copies would fulfill demand for the original 3090 microcode from IBM, and therefore harm the work’s potential market. See Hustler, 796 F.2d at 1155-1156. AMI suggests that its copying activities are a form of reverse engineering permissible as fair use, and that the doctrine of fair use should permit AMI to take advantage of the technological advances which make exact duplication of various versions of the 3090 microcode possible. AMI’s Trial Brief, at 8; AMI’s Memorandum in Opposition to IBM’s Post-Trial Memorandum of Law, at 27-29. According to the legislative history of § 107, the four enumerated factors are not an exhaustive list of the factors to be considered by courts in determining whether a certain form of copying constitutes fair use. Nevertheless, I reject AMI’s contentions. The evidence presented establishes that AMI in fact has not engaged in reverse engineering, but rather has copied the 3090 microcode extensively to attempt to determine what patterns of copying would produce copies of the 3090 microcode that would operate various 3090 systems. By the same token, the fact that technological advances have made it easier for AMI to engage in its extensive copying activities provides no basis for finding these activities to be fair use, particularly considering AMI’s commercial purpose for copying, the creative nature of the 3090 microcode, AMI’s copying of the entire 3090 microcode or of a substantial portion thereof and the likelihood of harm to the market for and the value of the 3090 microcode. iii. 17 Ü.S.C. § 117 AMI argues that its copying activities are permissible under § 117, a provision concerning permissible copying of computer programs added at the recommendation of CONTU. As with § 107, AMI bears the burden of establishing that the exception of § 117 applies. Atari, Inc. v. JS & A Group, Inc., 597 F.Supp. 5, 10 (N.D.Ill.1983). I conclude that even if AMI could establish that it is in the position of “the owner of a copy of a computer program” under § 117, it has failed to show that its copying of the 3090 microcode falls within either of the narrow definitions of permissible copying set forth in § 117. AMI’s copying to accumulate a library of the 3090 microcode, or to make copies of the 3090 microcode for reconfigured or split 3090 systems, was not performed as “an essential step” in the use of the 3090 microcode with the 3090 system under § 117(1). As CONTU recommended in its final report, § 117(1) permits only the copying of a program into a computer’s memory in order to permit the computer to execute the program. See Micro-Sparc, Inc. v. Amtype Corp., 592 F.Supp. 33, 34-35 (D.Mass.1984) (“In our opinion, [§ 117(1)] refers to the placement of a program into a computer—or, in the jargon of the trade, the ‘inputting’ of it.... The permission to copy stated in subsection (1) is strictly limited to inputting programs.”) In Vault, 847 F.2d at 261, upon which AMI primarily relies, the Court of Appeals for the Fifth Circuit held only that § 117(1) permits the loading of a program into a computer’s memory even if the program was then analyzed in memory for a purpose unintended by the copyright owner. The Vault Court did not address the type of copying in which AMI has engaged, i.e. making copies on tape and on a hard disk to build a library of different versions of the program and to supply with a computer other than the one with which the program originally was supplied. § 117(1) also permits adaptation of a program for use on a particular computer or to add features. See, e.g., Foresight Resources Corp. v. Pfortmiller, 719 F.Supp. 1006, 1009-1010 (D.Kan.1989) (holding that owner’s enhancement of program exclusively for in-house use was an adaptation permissible under § 117). But AMI’s modified versions of the 3090 microcode are not adaptations of the 3090 microcode permissible under § 117(1). The evidence establishes that AMI produces copies of the 3090 microcode for use on reconfigured or split 3090 systems by making rainbow copies from 3090 microcode copies taken from various 3090 systems, or by making changes in the 3090 microcode provided with one 3090 system to produce a partial duplicate of a copy from another system. See supra, at 529-530. Such activity is not permissible adaptation under § 117, since it produces modified 3090 microcode only by making partial duplicates of two or more different versions of the 3090 microcode produced by IBM. Likewise, the 3090 microcode copies produced by AMI do not fall within the exception for archival copies set forth in § 117(2). A copy used for archival purposes only, like the copy of the 3090 microcode IBM supplies on five tapes with each 3090 system for maintenance personnel, merely protects against the risk of loss of a program due to mechanical or electrical failure or some other form of destruction. See Atari, 597 F.Supp. at 9; CONTU Final Report, at 13. AMI’s copies, however, perform functions in addition to archival functions. The evidence establishes that AMI produced copies of the 3090 microcode which actively operated reconfigured or split 3090 systems or served as standby backups in the 3370s for those systems, as well as copies which constituted its 3090 microcode library used in making copies for 3090 systems. See supra, at 529-530. The copies produced by AMI therefore fall outside of § 117(2), which protects solely those copies used “for archival purposes only” (emphasis added). iv. 17 U.S.C. § 109 AMI suggests that the doctrine of exhaustion codified in § 109 permits AMI to engage in its copying activities to reconfigure 3090 systems. However, even if AMI could establish that IBM sold copies of the 3090 microcode as part of the 3090 system, § 109 would not permit AMI's copying activities. As the District Court for the Northern District of Illinois stated in Midway Mfg. Co. v. Strohon, 564 F.Supp. 741, 745 (N.D.Ill.1983), “[sjection 109 does not authorize adaptation and reproduction of a copyrighted work.” As noted above, no evidence was presented that AMI ever has modified the 3090 microcode supplied with a 3090 system which AMI reconfigured or split without copying at least a portion of the 3090 microcode supplied with one or more other 3090 systems. v. Consent Decree AMI contends that IBM is estopped from asserting its counterclaim for copyright infringement by its violations of various provisions of the Consent Decree in United States v. IBM, No. 72-344, 1956 Trade Cas. (CCH) ¶ 68,245 (S.D.N.Y. January 25, 1956). The Consent Decree requires IBM to take various actions and to refrain from various activities relating to the lease or sale of tabulating machines and electronic data processing machines and systems. AMI concedes that as a non-party to the Consent Decree it cannot attempt to enforce the Decree’s provisions against IBM. AMI nevertheless asserts as a defense that IBM is estopped from pursuing a copyright infringement counterclaim against AMI because of IBM’s violations of the Decree. AMI argues that IBM has violated a number of Consent Decree provisions including, in AMI’s view: an injunction in Section VII(d)(2) and (3) against subjecting to IBM control or approval alterations in, attachments to or experimentation with 3090 systems; a prohibition in Sections IV(b) and VI(c) against engaging in a lease-only policy regarding 8090 systems by providing the 3090 microcode to lessees to support reconfigurations or alterations without charge, but refusing to provide the 3090 microcode without charge to 3090 system owners; a requirement to offer the 3090 microcode for sale at reasonable and nondiscriminatory prices under Sections IV(b)(2), VI(c) and VII(d)(2) and (3); and a requirement under Sections IX(b) and (c) to furnish a copy of the 3090 microcode to 3090 system owners at cost. IBM argues that the Consent Decree does not apply to an attempt by IBM to enforce its copyright in computer software, that AMI has not established the elements of an estoppel defense based on the Consent Decree, and that IBM has not violated the Consent Decree. To establish a defense of estoppel based on alleged violations of the Consent Decree, AMI must show that: IBM has violated its obligations under the Consent Decree and IBM thereby has lost its right to assert a claim of copyright infringement against AMI because IBM “caused or brought about” AMI’s infringement. Broadcast Music, Inc. v. CBS, Inc., 221 U.S.P.Q. 246, 254, 1983 WL 1136 (S.D.N.Y.1983). If these elements are established, to hold that a party is estopped from asserting its claim of copyright infringement “is merely an application of the ancient equitable doctrine of ‘unclean hands.’ ” Tempo Music, Inc. v. Myers, 407 F.2d 503, 507 (4th Cir.1969). I find that insofar as AMI has engaged in unauthorized copying to support reconfigurations of 3090 systems AMI has failed to establish that IBM “caused or brought about” such activity. To the extent that AMI has made unauthorized copies of the 3090 microcode in order to perform splits, I find that IBM has violated Section VII(d)(3) of the Consent Decree in its pricing of the 3090 microcode necessary to perform splits and that IBM “caused or brought about” such activity by AMI. a. AMI’s Copying in Support of Reconfigurations To establish an estoppel defense based on the Consent Decree, AMI must demonstrate not only that IBM violated its obligations under the Decree but also that IBM “caused and brought about” AMI’s unauthorized copying. For example, in Tempo the Court of Appeals for the Fourth Circuit found that ASCAP was estopped from bringing a copyright infringement action against the owner of a club at which ASCAP songs were performed without authorization. The Court found that ASCAP had violated its obligations under a consent decree by failing to reply to defendant’s request for a list of ASCAP songs and stated that “we think it would be inequitable to permit these plaintiffs to recover for the infringement which occurred and which was caused and brought about, in part at least, by the dereliction of ASCAP in failing to facilitate [the defendant’s] expressed intention of avoiding infringement.” 407 F.2d at 507. In Broadcast Music, the Southern District of New York held that CBS could not assert that BMI’s copyright infringement action was equitably estopped as a violation of a consent decree because CBS could not establish that BMI caused the infringement by CBS. The Court distinguished the situation in Tempo: Unlike Tempo, this cannot fairly be characterized as a situation in which BMI seeks to recover for an infringement it “caused and brought about.” Rather, both parties ... have assumed adamant legal positions and have acted in accordance with their perceived rights. The direct casual (sic) link between plaintiff’s allegedly improper conduct and the relief it seeks, characteristic of the classic “unclean hands” case, is absent here. 221 U.S.P.Q. at 225 (citations omitted). AMI contends that IBM caused AMI’s infringement in copying the 3090 microcode to support reconfigurations, including building AMI’s 3090 microcode library, because it is impossible to reconfigure a 3090 system without copying and changing the 3090 microcode. As in Broadcast Music, however, I find that IBM has not “caused or brought about” AMI’s infringement to support reconfigurations. The evidence was that anyone, including AMI, can obtain a copy of the 3090 microcode from IBM to support a reconfiguration for between $420 and $2100, depending upon the number of 3090 microcode tapes which must be changed. Moreover, I find that the evidence established that IBM has supplied the 3090 microcode quickly enough to satisfy AMI’s requests, as well as of other parties who have placed orders. See supra, at 528. According to the chairman of Comdisco and of the CDLA Ad Hod Committee on Microcode, a delivery schedule of less than 14 days would suffice to meet the needs of companies which own 3090 systems and lease them to others. Pontikes, Tr. at 853-854; DX 4471. AMI contends that it could not obtain copies of the 3090 microcode from IBM during 1989 and thus could not satisfy its customers’ requirements. AMI’s Memorandum in Opposition to IBM’s Post-Trial Memorandum of Law, at 9. The only evidence cited in support of this contention is a memo referring to a statement apparently made by an employee of Data Hardware, a competitor of AMI’s, that IBM’s lead times in supplying the 3090 microcode “do not come close to meeting [Data Hardware’s] needs.” AMI’s Memorandum in Opposition to IBM’s Post-Trial Memorandum of Law, at 9; PX 1004. This statement does not establish that IBM provided 3090 microcode unreasonably slowly to Data Hardware. Moreover, because this statement obviously does not concern AMI’s 3090 microcode needs, it does not establish that IBM provided 3090 microcode to AMI so slowly that AMI was forced to make copies. AMI President Allen also testified that when AMI ordered 3090 microcode from IBM, the 3090 microcode was delivered “late” or was “wrong.” Allen, Tr. at 1079-1080. To the extent that Allen’s testimony contradicts the testimony of Larry Bigan-do, the program manager for the IBM department which ships 3090 microcode tapes, I credit Bigando’s testimony. See supra, at 528. Bigando’s testimony was supported by the statistics IBM compiled concerning 3090 microcode orders during 1988 and 1989, while Allen’s statement was unsupported. In short, I find that AMI has failed to establish that IBM caused it to make unauthorized copies of the 3090 microcode to support reconfigurations, because IBM has provided the required 3090 microcode with sufficient speed and for a reasonable handling charge. b. AMI’s Copying to Perform Splits AMI contends that IBM’s violations of a number of provisions of the Consent Decree prevent IBM from maintaining its claim with respect to AMI’s copying to split 3090 systems (which includes any copying to build AMI’s 3090 microcode library to the extent that such copies necessarily were used in performing splits). I will discuss each of the Consent Decree provisions relied upon by AMI in turn. As the Court of Appeals for the Third Circuit has observed, “[although consent decrees are judicial acts, they have many of the attributes of contracts voluntarily undertaken, and are construed according to traditional precepts of contract construction.” Fox v. United States Department of Housing and Urban Development, 680 F.2d 315, 319 (3d Cir.1982). Accordingly, in interpreting a consent decree a court’s “first resort is to the four corners of the agreement.” Halderman v. Penn- hurst State School and Hospital, 901 F.2d 311, 319 (3d Cir.1990) (citing United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971); Fox, 680 F.2d at 319). A court may not attempt to discern a consent decree’s scope by reference to the purposes of the plaintiff in initiating the litigation concluded by the consent decree, since the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. Armour, 402 U.S. at 681-682, 91 S.Ct. at 1757. The “four corners” rule does not, however, limit a court’s interpretation to a consent decree’s explicit provisions if it is ambiguous. Fox, 680 F.2d at 319. In addition, the Supreme Court has stated that in interpreting a consent decree, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. Such reliance does not in any way depart from the “four corners” rule of Armour. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975). AMI asserts that IBM violated a prohibition in Sections IV(b) and VI(c) against engaging in a lease-only policy regarding 3090 systems by providing the 3090 microcode to lessees to support reconfigurations or alterations without charge, but refusing to provide the 3090 microcode without charge to 3090 system owners. No evidence was presented to support this allegation. AMI asserts that IBM violated a requirement under Section IX(b) and (c) to furnish a copy of the 3090 microcode to 3090 sys-tern owners at cost. Section IX(b) and (c) require IBM to furnish computer owners with technical and instructional manuals and documents pertaining to the operation or repair of their machines. These provisions are unambiguous, and in no sense address or concern computer hardware or software, including the 3090 microcode. AMI also asserts that IBM violated a requirement to offer the 3090 microcode for sale at reasonable and nondiscriminatory prices under Sections IV(b)(2) and VI(c). Section VI(c) requires IBM “to offer to sell at reasonable and non-discriminatory prices and terms ... repair and replacement parts and subassemblies.” To the extent that AMI copies the 3090 microcode because it believes that IBM’s prices for 3090 microcode to perform splits are unreasonable, such copying cannot be justified by Section VI(c). AMI's copying to perform splits produces two copies of the 3090 microcode in addition to the two copies' supplied with the original split 3090 system. See supra, at 528, 529-530. These new copies of the 3090 microcode, used on one of the two new systems resulting from the split, cannot be “repair” or “replacement” parts or subassemblies for a machine. Section IV(b)(2) requires IBM to sell any “electronic data processing machines” currently manufactured and offered for lease by IBM. The 3090 microcode, while a necessary element of the 3090 system, is not in and of itself an “electronic data processing machine” as that term is defined in Section 11(f). Moreover, IBM does not lease the 3090 microcode, but rather licenses the use of the 3090 microcode under the Licensed Internal Code provision of the Purchase Agreement. See supra, at 527, n. 3. AMI’s primary Consent Decree defense is that IBM has violated the injunction in Section VII(d)(2) and (3) against “prohibiting, or in any way subjecting to IBM control or approval” alterations in, attachments to or experimentation with 3090 systems. According to AMI, IBM violates the Consent Decree “by seeking to retain title to a machine part it is required to sell and by employing its 3090 microcode copyright as a means to control or prevent its customers’ machine alterations.” AMI’s Memorandum in Opposition to IBM’s Post-Trial Memorandum of Law, at 9. I conclude that IBM’s effort to enforce its copyright in the 3090 microcode is not in and of itself a violation of Section VII(d)(2) or (3). Section VII(d)(2) and (3), if read in isolation, could be read to divest IBM of all its intellectual property rights in the parts of its computers. Because the Consent Decree is a contract, however, its provisions cannot be read in isolation from one another, but must be read in the context of the Decree as a whole. If, as AMI contends, Section VII(d)(2) and (3) deprived IBM of all its intellectual property rights over parts of computers, there would be no need for the patent licensing provision of Section XI. I nevertheless conclude that the splits of 3090 systems which AMI performs are encompassed by Section VII(d)(3) as “alterations” to such systems, and that IBM violated Section VII(d)(3) by attempting to prohibit splits or subject them to its control or approval through its pricing of the 3090 microcode necessary to perform splits. As with reconfigurations, IBM offers to supply copies of the 3090 microcode to AMI and others to support splits of 3090 systems. The evidence establishes that although IBM seeks to recover microcode development costs in its charge for 3090 microcode to perform splits it does not charge the same amount for microcode for all splits. Rather, IBM sets the price for the 3090 microcode for a given split at a level designed to reduce or eliminate any economic incentive to perform the split. For example, IBM charges $333,000 for the 3090 microcode to split a 400E into two 200Es, because two 200Es sell for $4,500,-000 each, or a total of $9,000,000, and a 400E plus the hardware required to split it into two 200Es costs only $8,654,000. IBM’s Enterprise Systems Financial Analysis Director and the Senior Vice President and General Manager of IBM Enterprise Systems both testified that IBM set the price to supply the 3090 microcode necessary to perform this split at a price that closes the gap between the price of the original 400E and the two 200Es resulting from the split. Conti, Tr. at 194-195; Del-lasega, Tr. at 585; DX 4379. IBM submitted evidence concerning two other splits for each of which IBM charges a different price to supply supporting copies of the 3090 microcode: to split a 280E into two 180Es, $245,000; and to split a 400S into two 200Ss, $350,000. Dellasega, Tr. at 586-590; DX 4381; DX 4383. IBM presented the testimony of Professor Almarin Phillips, who studied IBM’s pricing of the 3090 family. He stated that IBM set its prices with two constraints in mind: an upper limit imposed by competition and the desire to limit others’ ability to take advantage of price differentials through splits, thereby maintaining IBM profit levels. About the latter constraint he said: part of the investment made in the 3090 family, and not totally peculiar to 3090 but in the extreme in 3090, was investing in an ability to move one type of 3090 computer to another type of 3090 computer, which created arbitrage capabilities. In order for IBM then to be able to realize in the market what the market would permit it to get through the competitive process, it had to impose another set of constraints, some internal constraints, to prevent others from arbitraging across particular types of computers in ways which would make that recovery impossible. Phillips, Tr. at 1439. Similarly, in discussing the price differential between a 400E and two 200Es, Phillips said: “To close that, IBM prices the RPQ at $350,000, effectively saying this is an arbitrage route that we would like not to have open because it would undermine our ability to price appropriately in the competitive marketplace.” Phillips, Tr. at 1443. The four splits which AMI performed, and which are the subject of IBM’s copyright infringement counterclaim, were of a 400E into two 200Es. I conclude that by setting the price of the microcode for this type of split at a level which eliminated any economic incentive to perform splits IBM violated Section VII(d)(3); by this structure IBM prohibited splits, or at least subjected splits to its control or approval. I also find that in adopting such a pricing structure, IBM “caused or brought about” AMFs copying activity and infringement to perform splits. Due to IBM’s pricing, AMI could perform splits only if it produced copies of the 3090 microcode to use on the machines resulting from the splits. Although it contains provisions concerning patents, the Consent Decree-does not contain any specific provisions concerning computer software or copyrights. Consent Decree, Sectio